legal Procedure And Process Of Divorce In Pakistan
Procedure Of Divorce In Pakistan :
The Divorce
Act, 1869.Generally the provisions of Muslim Courts Act may be applicable to
non-Muslim also but the whole question is whether clause (a) of sub-section (2)
which makes specific reference to Dissolution of Muslim Marriages Act is
limited to community living in Pakistan. From the perusal of all the laws, at
the subject it transpires that the forum in the Special Marriage Act is
determined by Section 14 of Divorce Act, which is a forum different from the
Family Court. The Parsi Marriages and Divorce Act, provides for the forum of a
Special Court. Under the Native Converse Marriage Dissolution Act, 1866, the
forum is either the High Court or a Civil Court. These Acts are central
statutes and a Provincial Act like the West Pakistan Family Courts Act cannot
override them. The dissolution of Marriage under Acts () to (v) above
enumerated is a subject not falling within the jurisdiction of the Family
Court. Lady was Christian but she embraced Islam Former husband did not
challenge their co-habitation in any forum. Lady was Christian by faith and had
earlier married to a Christian but she embraced Islam and married a Muslim
without getting formal procedure
of divorce in Pakistan from her former Christian husband. After
repudiating Christianity, Section 14 the lady embraced Islam, though there was
nothing on record to show that she invited her Christian husband to accept
Islam but it was established that it as in his knowledge that she had changed
her faith and was living with a stranger i.e., Muslim husband.
Nadra Divorce Certificate In Pakistan Was Required:
Since that former husband did not challenge
their co-habitation in any forum, therefore presumption would be in favor of
lady that she offered embracing of Islam to her former husband but he refused
to accept the same, thus marriage of respondent lady with the Christian husband
stood dissolved and no procedure of khula in Pakistan was required and
therefore no Nadra divorce certificate in Pakistan was required. Muslim female
married to a male claiming to have converted to Islam. Male subsequently proved
to be foreigner and implanted in Pakistan for espionage. Effectiveness of Nadra
divorce certificate in Pakistan was challenged. Husband administered the
authority of Chairman to divorce and notified the same to Chairman
Arbitration/Union Council whereupon certain proceedings were taken and
ultimately a Nadra divorce certificate in Pakistan was issued. Right of divorce
was issued through the impugned order. Wife was well aware of the fact that
husband had pronounced divorce to her for which consequential proceedings
before the Arbitration/Union Council had also been taken. Father of the wife
had been pursuing the matter before Arbitration Council.
Case of the wife who
had challenged Nadra divorce certificate in Pakistan was that the submission of
divorce deed with a notice before the Arbitration Council could not, ipso
facto, operate and result into the dissolution of marriage on the basis of
khula procedure in Pakistan. In the present case it could not be disputed that
the period much beyond 90 days had expired from the date of notice of the
divorce when impugned certificate of its effectiveness was issued; in the
circumstances, especially keeping in view all the relevant facts of service of
notice on the Chairman Union Council, the initiation o the proceedings by the
Arbitration Council, the repeated appearance of father of the wife who was
holding a power on her behalf in those proceedings and actual knowledge of the
Wife about the pendency and fact of proceedings, procedure
of Divorce in Pakistan and its
pronouncement had become effective. Failure to send a notice to the Chairman of
the Arbitration council would not render the divorce in- effective in Islam.
Effect of pronouncement of divorce in Islam would not justify interference with
impugned order nor would warrant exercise of discretion in favor of the petitioner/wife
under Article 199 of the Constitution.
Husband Alleged That He Had Divorced
The Wife And One Of The Minors Was Not His Son.
Family Court decided the issue of divorce in favor
of the husband and maintenance to the wife and the son was refused. Appellate
Court reversed the findings of the Family Court qua procedure of divorce in
Pakistan and found the wife and the son entitled to maintenance. Judgment and
decree passed by the Appellate Court was upheld by the High Court in exercise
of Constitutional jurisdiction. Only evidence produced by the husband to prove
the factum of divorce was divorce deed and Nadra divorce certificate in
Pakistan issued by Union Council. No independent evidence was produced on
record that the husband in fact sent divorce to the wife, as the same was
required under the Muslim Family Laws Ordinance, 1961, and thereafter gave
intimation to the Union Council. Findings of the facts recorded by the Appellate
Court and maintained by the High Court did not Suffer from any legal infirmity
such as misreading or non- reading of any material piece of evidence. Supreme
Court declined to interfere with the judgment passed by High Court and leave to
appeal was refused. Neither any witness in whose presence the alleged divorce
pronounced nor any formal deed of Talaqnama produced mere entry in the
petition-writers register who did not know parties personally would not prove
divorce. In order that a Talaq given by
a Shia male to his wife be valid, it must be pronounced in the presence of the
wife and two witnesses and that a written divorce deed would be invalid unless
it be established that the husband was incapable of pronouncing the mentioned
above procedure of divorce in Pakistan and getting Nadra divorce certificate in
Pakistan issued.
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